' This is a second appeal by Muhammad Ramzan tenant under subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959, to impugn concurring orders of two Courts below for his ejectment on the ground of default in payment of rent for consecutive three months.
2. The dispute relates to shop bearing No, 2/23, Main Bazar, Chawinda, Tehsil Pasrur, District Sialkot, which the appellant was holding in tenancy at monthly rental of Rs,
100. On 4-10-1976 Muhammad Tufail landlord/owner, respondent applied before learned Civil Judge, Pasrur also empowered as Controller under section 13 of the Ordinance alleging that the appellant was in arrears of rent since 1st July, 1976, that the respondent required the shop bona fide for his personal use and finally that the appellant had damaged the shop impairing its value and utility. The appellant contested the application and filed written reply controverting the above allegations in the application. Attention should be confined to the allegation of default only against the appellant which was upheld by learned Controller as well as by learned appellate authority. It was averred in para. 3 of the rejoinder to the application filed by the appellant that the respondent had refused to accept payment of rent whereat the amount was remitted to him by means of postal money orders which was also not accepted by the respondent. The amount of rent was then deposited in Court. Rent for the month of July, 1976, had already been paid to the respondent I n lieu of a receipt. Necessary issues were drawn by learned Controller, both sides led evidence in support of their respective assertions. The issue of default was answered in favour of the respondent with the finding that the rent for the month of July, was not paid by the appellant. The receipt relied on by him was not genuine. The appellant had also failed to establish that he had tendered in time rent for the months of August, 1976, and September, through postal money orders. The remaining two issues concerning bona fide requirement of the shop by the respondent and damage to the premises were, however, answered in favour of the appellant. In consequence of his findings on the issue of default, learned Controller ordered eviction of the, appellant.
' Aggrieved by order of learned Controller the appellant filed appeal in District Court, Sialkot, which was dismissed by an Additional District Judge, upholding the findings of learned Controller that the appellant was a defaulter.
3. I have been taken through record by learned counsel for the appellant. Abdul Aziz, Sardar and Rehmatullah (A. Ws. 1 to 3) were examined on the side of the respondent. Muhammad Fazil, Khalid Mahmood, and Muhammad Bashir (R. Ws. 1 to 3) were adduced by the appellant in rebuttal. The parties also recorded their statements as their own witnesses. The statements of Abdul Aziz and Sardar (A. W. 1/2) are not relevant to the question under consideration. Rehmatullah (A. W. 3) had said that the respondent had in his presence demanded payment of rent by the appellant which the latter refused. The respondent denied payment of rent for the month of July and execution of receipt and also expressed his ignorance of remittance of rent by the appellant through money orders. Muhammad Fazil and Khalid Mahmood (R. Ws. 1/2) stated that rent for the month of July was paid to the respondent in their presence. Muhammad Fazil also said that he had scribed the receipt for payment of rent for the said month. The receipt was signed by Khalid Mahmood as an attesting witness. The receipt was however not admitted in evidence by learned Controller with the view that it was not mentioned in the list of reliance nor it was produced at the proper stage meaning thereby that the receipt should have been produced before or on the date of striking issues in the case. Statement of Muhammad Bashir (R. W. 3) the remaining witness of the appellant is also not relevant to the question of default. The appellant has in his statement reiterated the assertion that rent for the month of July, 1976, had been paid to the respondent and rent for the remaining months was tendered through postal money orders (R1-R2). The respondent had been telling him that he would receive accumulated rent in lump sum. The appellant suspected some contrivance on the part of the respondent and deposited the amount in Court. Learned Controller rejected the evidence on the side of the appellant and also recorded a considered finding on genuineness of the receipt although it was not allowed to be proved formally. He was of the view that the signatures of the respondent appearing in the margin of the receipt on the right side did not tally with his signatures on the application for ejectment. The signatures of the respondent on the revenue stamps appear to have been removed from some other receipt and pasted on the receipt in question. Learned Controller thus concluded "so even" that receipt does not help the respondent (now appellant herein) to establish that he had paid the rent of July, 1976". Remittance of rent through postal money orders was not established by receipts R. 1/R.
2. The money order coupons should have been filed if the respondent had refused to accept payment. The receipts R. 1/R. 2 were, therefore, insufficient to establish that the appellant had tendered the rent for the months of August and September. The appellant had defaulted in payment of rent for the period from July, 1976, to September, 1976 (both inclusive).
4. Learned Additional District Judge was also of the same view that learned Controller had rightly declined to admit the receipt in evidence. The respondent had not affixed his signatures underneath the receipt at the place where the executant is expected to sign. "Thus patently the receipt appears a forgery"; Learned Additional District Judge further agreed with the Rent Controller that receipts R. 1/R. 2 did not satisfactorily prove remittance of amount by the appellant through money orders.
5. Considerations for hearing of second appeals under subsection (4) of section 15 of the Ordinance are the same as in appeals under section 100, C. P. C. The question whether fact has been proved when evidence for and against has been examined is necessarily a pure question of fact. Court of first appeal alone is competent to enter into such questions and decide whether findings based on inferences drawn by Court of first instance from facts brought out in evidence are or are not erroneous. But a Court of second appeal is not competent to entertain question as to the A soundness of such findings even though the findings were erroneous or grossly inexcusable unless the finding is based on no evidence or evidence inadmissible in law or misstatement of facts, or vitiated by misreading of evidence or the finding was manifestly unjust or there had been an error of procedure followed in the enquiry which had produced a defective decision. Learned counsel for the appellant said that he had no dispute whatever with the above proposition of law which was beyond controversy. However, he maintained that findings of lower Courts were vitiated by error of law. The receipt evidencing payment of rent for the month of July should not have been excluded on the ground that it was not filed in time. The Courts below had shut out the receipt keeping in view of the provisions in Order XIII, C. P. C. Proceedings under the said Ordinance are not regulated by Civil Procedure Code as learned Controller does not act as Court. In cases where the documentary evidence is excluded erroneously, findings of fact will be deemed to have been vitiated by error of law and can be set aside in second appeal. Reliance was placed on the judgment in Muhammad Bakhtiar Khan v. Qazi Bashir Ahmad (1). The argument does not take the appellant any far although it must be conceded that learned Rent Controller is not bound to follow the procedure laid down in Civil Procedure Code as he acts in quasi-judicial capacity and not as court. The judgment of Supreme Court in Khadim Mohyuddin v. Rehmat Ali (2), is the basic and prominent authority on the point. It was also laid down in this judgment that Controller is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. The question of nature of enquiry is left to him. It will be seen that Controller may follow the principles underlying the provisions in Civil Procedure Code for trial of civil suits if he feels so advised. Learned Controller had, therefore, the power to exclude the document on the ground that it was filed at a belated stage and it was not above suspicion. The judgment in the case of Muhammad Bakhtiar Khan also does not avail of the appellant. In that case certified copy of judgment of a Court was tendered in evidence by the plaintiff the day he had closed his case. The document was excluded by the Courts below although its authenticity was not, open to doubts. The considerations which should be kept in mind in deciding the question whether or not the document which was not relied in the list of documents nor produced at the first hearing of the suit in accordance with Order XIII, rule 1, C.
P. C. By admitted have been outlined in this judgment which are: (1) Whether there are good grounds for the failure to enter it in the list or to produce it at the first hearing; (ii) Is there any doubt about the genuineness of the document; and (iii) Will the opposite-party be prejudiced by the fact it had no timely notice of the intention of the other side to produce the document. The receipt produced by the appellant on the date of examination of his witnesses is a private document, and from view-point of authenticity the receipt could not be treated at par with certified copy of judgment of Court. Besides both (1) PLD 1957 Lah. 803 (2) PLD 1965 SC 459 Courts below have recorded categorically findings that the receipt was not genuine which finding was binding and conclusive in second appeal.
' On my own examination of record, I am also led to agree with the two Courts below that the receipt was not genuine. Unfortunately, the stamps bearing signatures of the respondent affixed on the receipt have been detached somewhere during transmission of record. However, a photo stat of the receipt can be seen at page 29 of the record of proceedings before learned Controller. The respondent had not put his signatures at proper place of the receipt under 'AL ABAD'. The conclusion arrived at by learned Controller that these stamps had been removed from some other receipt and pasted on the receipt in question appears to be correct. The view that the receipt was not genuine also finds support from comparison of pleadings in the case. The words that rent for the month of July had been paid and receipt was obtained in the concluding line of para 3 of the reply are a subsequent addition and also are in a different ink and different handwriting. This addition appears to have been made after the pleadings were completed. The respondent had in the earlier part of para. 3 of the application said that the appellant was in arrears since July, 1976.
The counter a section that rent for the month of July had been paid in lieu of a receipt should not have been made at the tail end of corresponding para. Of the written statement. This impression is further fortified by comparison of written statement with the replication filed by the respondent. He would have said something explicitly about the receipt if the contention that rent for the month of July, was paid to him against receipt had been raised in the written statement. It appears that the appellant had realized subsequently that rent for the month of July had not been tendered to the respondent through money order and this omission will in itself be sufficient to justify order of his eviction. To meet the situation .He had at a later stage made interpolation in the written statement and came up with a receipt which has been rightly adjudged as not genuine by both the Courts below and the appellant was rightly held defaulter in payment of rent for the month of July, 1976.
Learned Controller has in the discussion on Issue No, 1 observed that the tenancy was oral as no rent note was produced. This is incorrect. The fact of the matter is that rent note was filed by the respondent (page 57/59 of the file) but was not formally proved in evidence nor the respondent was questioned about the rent note during the cross-examination.
' The appellant should therefore be allowed the benefits of concession of oral tenancy regarding payment of rent. Under sub-clause (i) of subsection (2) of section 13 of the Ordinance rent for the month of July, fell due on first August and was payable within a period of 60 days thereafter, viz. By or on 29th October. Rent for the months of September and October, was payable respectively on 29th November and 30th December, after the proceedings were instituted on 4th October, 1916.
Rent for the said two months was deposited by the appellant on 31-1-1977 (R. 3). The appellant has contended in his statement that he had first tendered the rent through money orders (R1/2) which the respondent did not accept. The assertion of the appellant was turned down by learned Controller with the view that the amount was sent to some Muhammad Tufail by an anonymous person. The appellant should have produced money order coupons and the report of postal peon thereon that the payee had declined to accept payment. Receipts R. 1/R. 2 were in themselves insufficient to prove remittance of rent by the appellant.
' As said above, learned Additional District Judge also held the same view that money order coupons must have been produced by the appellant. I am not persuaded to agree with the Courts below that receipts R. 1/R. 2 indicating Muhammad Tufail as the payee were not sufficient evidence to prove remittance of money by the appellant to Muhammad Tufail respondent, through postal money order unless coupons were filed. The genuineness of the receipts is guaranteed by the stamps of the post office thereon. The fact that the receipts were filed by the appellant was sufficient to show that the amount was remitted by the appellant and not by an anonymous person for payment to the respondent. It is a matter of common knowledge that full address of payees is not entered in such receipts. Accordingly, I hold that the appellant could not be held defaulty for payment of rent for the months of August, 1976 and September.
6. Learned counsel for appellant argued that the order of ejectment of a tenant on ground of default is in the discretion of Court which should have been exercised in favour of the appellant. He was in possession of the shop for the last 11 years without any default in payment of rent even for a single month. Reliance in this behalf was placed on the judgments in Muhammad Ali Mulla v. Ziaul Islam (1), and Muhammad Shafi v. Zahir Hussain and another (2). With respect, the latter judgment is wide off the mark. It is not the case of the appellant that rent for the month of July, 1976, was not paid by the appellant as the respondent had been receiving payments in lump sum. The Judgment in the case of Muhammad All Mulla does not at all avail of the appellant. It was held in that case that the object of the Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay the rent. The discharge of this statutory obligation by the tenant is a condition for protection. He can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay the rent but was prevented from doing so by the circumstances beyond his control or he had fallen into arrears through inadvertence for some months. The appellant has been overruled in his contention that rent for the month of July, 1976, had been paid to the respondent and the receipt relied on by him was found to be a forgery, etc. ' Discretion is exercised judicially on considerations of equity and that of interest of justice. A person who raises a false plea and comes up with a false, fabricated document in support of such a plea is clearly disentitled to claim exercise of discretion in his favour. As having come to the Court with unclean hands he cannot claim equity in his favour. To exercise discretion in favour of such a suitor would be tantamount to encouraging false pleas and forgeries, etc. Omission on the part of the tenant in payment of rent by circumstances beyond his control or comprehension or by sheer in advertence only would justify exercise of discretion in his favour. In any case the Courts below have not exercised their discretion in favour of the appellant. Normally, Court of second appeal does not interfere in such matters. Refusal by the subordinate Courts to exercise their discretion or wrong exercise of discretion cannot be termed as a question of law or error of law which could justify interferences by High Court in second appeal.
In view of what I have said above, I affirm the decision of the Courts below with the modification that the appellant was defaulter in payment (1) PLD 1973 Kara 56 (2) PLD 1978 Lah. 862 of rent only for the month of July, 1976, which warranted his eviction, there being no ground to condone the default in exercise of discretion and dismiss the appeal with costs. The appellant shall within four weeks hand over vacant possession of the shop to the respondent. Counsel fee Rs, 200.